Lawyers warn of threat to drivers' rights as Eby hints at no-fault insurance for ICBC

The association representing trial lawyers in the province has accused B.C. Attorney General David Eby of trying to deflect attention from a recent legal loss by "raising the spectre" of no-fault auto insurance.

Full no-fault insurance would severely cut into lawyer's commissions by eliminating most "pain and suffering" lawsuits for strains, sprains and whiplash. 

Instead of going to court, each driver's insurance company — in this province, the Insurance Corporation of B.C. — would handle the claim, assess medical costs and determine the pay out. Despite the 'no-fault' name, the driver deemed responsible for the crash would face higher insurance premiums.

Money would be saved by avoiding drawn-out legal cases.

Currently, B.C. has a hybrid no-fault system, but major injury cases are still decided under the "tort" or "at fault" system, where the injured party can sue the other driver for their loss through the courts.

The Trial Lawyers Association of B.C. argues a full no-fault system would strip British Columbians of the ability to sue for damages if they're injured in a car crash.

"The last thing we should be doing is taking away people's rights," said association president Ron Nairne.

Dousing the 'dumpster fire'

Eby has consistently said full no-fault auto insurance isn't being considered, but recent comments appear to hint something similar could be coming down the road for B.C. drivers.

The attorney general, responsible for the provincially-run Insurance Corporation of B.C., has said drastic action is required to stem massive financial losses.

Shortly after taking over from the B.C. Liberal government, Eby declared ICBC, with a deficit of $1.3 billion, was a financial "dumpster fire."

This year, he brought in three reforms; a $5,500 cap on minor injury payouts, a civil resolution tribunal that can resolve auto accident disputes under $50,000 and a limit on the number of expert witnesses who can be called in injury cases billing between $5,000 and $20,000.

The Trial Lawyers Association challenged all three changes.

On Oct. 24, it won its case against the expert witness limit — the B.C. Supreme court ruling the government move was "unconstitutional".

'Careful what they wish for,' Eby says

After the court loss, Eby insisted a full no-fault system is not something he's looking at for the province.

But he said something similar might be considered.

"There are a number of different measures that we think we could bring in that would reduce rates and would reduce costs, especially legal costs, which is what no-fault systems tend to address," Eby said in a media scrum.

And he warned if trial lawyers continue to fight the remaining two reforms, the province could be forced to take drastic action.

"If those were to fail in court, it would be catastrophic and we would have to look at absolutely everything," said Eby, "because that's about $1 billion a year, plus the savings available to us."

"I've told the trial lawyers very clearly that in going after these reforms, they need to be careful what they wish for, because there won't be many options for government after that," said Eby.

'Spectre of no-fault': trial lawyers

The president of the Trial Lawyers Association says the mere mention of no-fault insurance is a red flag for his members.

"[The attorney general] seems to be raising the spectre of no-fault in those comments," said Nairne. "What he's saying is 'if I don't get my way, I'm going to take away the rights of the injured citizens of British Columbia for fair compensation.'"

Nairne says letting ICBC adjusters and bureaucrats assess blame — and not the courts — would likely be a nightmare for claimants.

Insurance rates would increase for the driver at blame in a crash and, he says, that would mean ICBC adjusters and bureaucrats would decide blame — not the courts.

"It seems odd that where this corporation has gone out of control and has lost more and more money," said Nairne, "Mr. Eby's solution is to turn to it and say, 'why don't you get bigger and bigger than ever.'"

Asked for clarification on his comments, Eby didn't elaborate on the possibility of no-fault insurance but hinted the court loss involving expert witnesses could be appealed.

"Our immediate focus is to go through the recent court decision and carefully consider our next steps," he said, because "we need to do more to bring insurance rates down."

Average B.C. auto insurance $1,900

ICBC confirms even after rate structure changes in September that force high risk drivers to pay higher rates, the average B.C. insurance rate (basic & optional) is approximately $1,900. 

That's the highest in the country. 

By contrast, drivers in Manitoba, with a similar public insurance provider and a full no-fault system, pay an average of $1,100.

In Saskatchewan — another provincially-run system — the average premium is $1,062.

'Nothing happens quickly with ICBC'

Richard McCandless, a former B.C. senior civil servant who worked on ICBC issues in the 1990s, says full no-fault insurance is long overdue here.

But he says even after the legal smoke clears, it could take more than a year to launch — if Eby commits, "then they would take six months or whatever to redo their computers," said McCandless. "Nothing happens quickly with ICBC."

In the meantime, he says, the success of Eby's reforms will be measured when the latest financial figures come out.

"Watch in the next three weeks when the second quarter report comes out for ICBC," said McCandless. "That will give a good indication of whether they're on track".

If not, McCandless believes, "the only option then will be no-fault."